After Tony Yengeni was thrown in jail, Minister Lindiwe Sisulu arguably became the best dressed member of Parliament. However, behind her back she is often referred to as “The Princess” because she comes from political blue blood and acts the part. “We are not amused,” seems to be her motto.
Last week the Minister revealed her monarchic tendencies for all to see when she got rather upset with Parliament’s standing committee on public accounts (Scopa) because it – gasp! – demanded that she should appear before it and berated her when she failed to turn up on no less than three occasions. “We” were not amused and had much to say about the matter.
She felt Scopa’s criticism had injured her dignity (I suppose this is because she believes a Princess has more dignity than a shackdweller, say, and may thus not be criticised) and as a result has lodged a formal complaint with Deputy Presiden Kgalema Motlanthe. She also met ANC chief whip Mathole Motshekga and other party whips last Wednesday where a “political decision” was taken that she should boycott Scopa. As The Star reports, The Princess then had the following to say:
“For now I am in a situation I don’t see my purpose in Scopa. Scopa has a relationship with the department, they can summon the department but they cannot summon ministers. They interact with ministers, it is our responsibility to co-operate. Once you have heard all this noise ‘summon the minister’ why would you want to go there and cloud the issue? The issue that we all should be concerned about is making sure that the public money that is given to any department is properly accounted for. That is what I want Scopa to do, they have complete access to my department,” she told journalists
She contested Scopa’s right to summon her to appear before it, saying the only committee that had such power was the joint standing committee on intelligence, which she chaired in the 1990s, and Speaker of the National Assembly Max Sisulu. If Scopa or any committee wanted to summon any minister they could do so through the Speaker, said the minister.
The Minister is of course wrong. Maybe she has received bad advice from a certain gentleman who has been disbarred from practicing law in the United States or maybe she just does not understand how accountability and oversight works and what political responsibility and accountability means. Let’s look at the law to see why the Minister is wrong.
Section 56 of the Constitution seems pretty clear on the issue (but one is not sure whether the Minister and her advisors consult the Constitution much). It states that “[t]he National Assembly or any of its committees may summon any person to appear before it to give evidence on oath or affirmation, or to produce documents; require any person or institution to report to it; or compel, in terms of national legislation or the rules and orders, any person or institution to comply with a summons or requirement in terms of” the Constitution.
Minister Sisulu’s comments that she could not be summoned by Scopa and – worse – that a “political decision” was taken that she would not attend Scopa meetings are ominous. It either suggests that the Minister believes she is not a “person” at all (because she is too exalted a creature to fall under the definition of “person”) or that she is above the law. As long as the ANC takes a “political decision” to ignore the law, the law and the constitution can be flouted.
But what about her somewhat contradictory claim that Scopa could only summons her to Parliament via her brother, The Speaker of Parliament? She is also wrong on this score. Section 14(2) of the Powers and Privileges of Parliament Act, states that a summons in terms of the Constitution to appear before a House or committee to give evidence or to produce documents must be issued by the Secretary of Parliament on the instructions of either the Speaker or the Chairperson of the relevant committee.
The Chairperson of a Committee can therefore instruct any Minister to appear before his or her Committee without any involvement of the Speaker. If that Minister disobeys the instruction, the Chairperson can have a summons issued to force the Minister to do so and she is legally obliged to appear. If she fails to appear she can be fined and even sent to prison for contempt.
But what about rules 325 of the Rules of the National Assembly, I hear you ask (I bet you knew about that rule all the time and have been lying awake at night pondering its meaning). The rule states that: ”No committee shall summons a witness without first having satisfied the Speaker that the evidence of such witness will be material to the enquiry.”
There are two ways of understanding this rule. First, the rule could refer to witnesses who will be paid witness fees and will come and give evidence of a factual nature and not to members of the Executive who are constitutionally required to account to Parliament.
Section 92 of the Constitution states quite broadly that members of the Cabinet are accountable collectively and individually to Parliament for the exercise of their powers and the performance of their functions. It also states that Members of the Cabinet must act in accordance with the Constitution; and must provide Parliament with full and regular reports concerning matters under their control. When they do this the Ministers are not witnesses, they are members of the Executive fulfilling a constitutional function.
When the Minister is summoned before Scopa she is not summoned as a witness but as the Minister to account POLITICALLY for what has happened in her department regarding the (mis)spending of money. A witness is summoned to give evidence. A Minister is summoned to account politically to Parliament in terms of the requirements of the Constitution.
Second, if the Minister is considered to be a witness for the purposes of rule 325, then there is an obvious clash between section 14(2) of the legislation mentioned above and the rules of Parliament as the legislation clearly states that either the Speaker or the head of a Committee can instruct that someone is summoned to appear before it. Where such a clash exists it should be interpreted in a manner that would avoid a clash. (I would contend the interpretation of “witness” provided above represents such an interpretation.) If it cannot be so interpreted, then the legislation takes precedence over the rules of Parliament.
So much for the technical arguments. But a broader issue is at stake. In our system of separation of powers, members of the Executive (including the Minister, whether she is a “person” or a “princess”) are politically accountable to Parliament. That is why any committee of Parliament can summons a Minister to appear before it and can demand that a Minister explains what steps are being taken to rectify any problem.
While functionaries like Director Generals might do most of the work and act as accounting officers, they are not POLITICALLY accountable to Parliament. Only the Ministers are. For that reason Ministers have a duty to respect Parliament and to account to Parliament if requested to do so and not to run to the Deputy President and ask that “political decisions” be taken so that Ministers need not do their jobs.
The buck stops with the Ministers. They have a constitutional duty to respect Parliament and to account to it. They cannot take “political decisions” not to do their jobs and not to respect the Constitution and the law. If they do that, they are in breach of the Constitution and in contempt, not only of the law, but also of every single voter who have voted for the parties of their choice to represent them in Parliament and to insure that members of the Executive do their jobs and spend our money wisely.
In writing this post (and in the spirit of ubuntu) I have tried not to show the same contempt for the Minister as she has shown for our system of constitutional democracy and checks and balances. Readers will have to judge whether I have been successful in this regard.
How we need Andrew Feinstein right about now !!!
If memory serves me right, the decision to call for her to appear in parliament was partly in response to the incompetent representation by the officials.
Isn’t this a wonderful way to place parliament offsite: send incompetents from the department, and make royalty rules to avoid sending the minister. Parliament may as well go on long leave.
This surely fits right into the DNA of the ruling clique: SA is their personal fiefdom (and ATM), and anyone who wants to hold them to account is counter revolutionary, white, or both? Or, as in the case of the BBC dude, an agent. Oversight is not appropriate for these servants of the people, since they know best what the people need.
This is like Saudi Arabia or China, but without the money, the brains, the plans, the commitment or the ambition.
Prof, excuse me, I’m totally off the point, but this whole Eskom price tariff saga:http://www.businessday.co.za/articles/Content.aspx?id=107213
Why not review the Nersa decision that allowed those price increases over the following years?
Section 4[a][ii] of the National Regulator Act, 2004, states Nersa must “regulate prices and tariffs…”
Then, obviously under s4 of PAJA, it held public hearings and considered 427 written comments. In its 24 Feb 2010 media statement it then said:
“After duly considering the application, the written submissions, reasons, facts and evidence provided… the Energy regulator approved the following….”
But if the Billiton discount prices were kept a secret, and was only revealed via the DA through a whistleblower around 23 April 2010, surely the whole process of Nersa was flawed and reviewable! Under section 6[2]of the Promotion of Administrative Justice Act as “procedurally unfair” or “relevant considerations were not considered”, or “otherwise unconstitutional”.
The whole process of considering a price increase that affects every citizen, must be reviewable and unfair if that substantial discount afforded to an 8% power user at the smelters was not disclosed to the public – or maybe even to Nersa. Or, lo and behold, if Nersa did know it but kept it secret from the public who attended hearings and were so “consulted” – but actually were mislead!
Two weeks ago – a miltary exercise at sea had to be postponed and MPs (notably, only the ANC Mps) on board the main vessel as observers first had to be put to shore because they were unhappy for not being treated at a par with the Princess and the Captain, but had to be satisfied with the same kind of treatment the members of the media got – eating and drinking with the officers. Some animals more equal than others? And then they have the nerve to accuse the Princess of not bringing her “kant”? Perhaps these gravy-train-riders should first rid themselves of their own corrupt prejudices and preferences before investigating those of the Minister (not that her actions and that of her Department need not be investigated though!). Who will guard over the guards?!
I suspect that she will refuse to subject herself to vigorous scrutiny. She will demand that the ANC chief whip first castrate scopa – like during the arms deal investigation. Vincent Smith, your party needs you……
“[t]he National Assembly or any of its committees may summon any person”
Eish Pierre, this is not just “any person” over whom the silly commoners in Scopa pretended that they had the power to summon.
Please forgive my ignorance, but surely the rules of Parliament include some form of contempt penalty, for those that ignore an instruction to appear before a committee?
Parliament will only be a true parliament when they start to play their proper role. That is probably not possible until we have Constituency Representation.
Prof: is the law a joke, is it weak and vulnerable? Those who career the law need to look beyond billable hours and start thinking about saving their country.
Respected prof
Is it not possible that many in the government do not know what it means to live in a country where the Constitution is supreme.
Could it not be that they do not understand the rule of law.
The law means nothing without the political will to implement it. Our justice system is in a horrific state and here we see exactly what the problem is. Change the ruling party. It’s time that this democracy start behaving like one.
The freedom we have.
http://www.news24.com/SouthAfrica/News/Cops-in-hot-water-over-poster-20100428
Gwebecimele
Using your company’s resources & tools limits your freedom. I’m no legal expert but where I work I also sign an e-mail policy acknowledgement. If I were to send or forward mail that includes profanity, obscenities or derogatory remarks then I will face the music.
What makes it even worse for these SAPS employees is that the person they are mocking is their “CEO” so to say…
This is a very valid case, had they used their own personal e-mails on their own personal PC’s then I don’t see any problem.
@ Xolani
If we accept these narrow limits then almost 95% of employees will have to be fired. How is this different from sending it from a gmail account using a company Laptop or PC? There is plenty of jokes about politicians and if these are not allowed then rather deal with creators of these jokes rather than how they are transmitted. The intention of an IT Policy is to prevent abuse of state/company resources for personal benefits such as running your personal business in your employers office. IF it is intepreted the way you suggest then we can all carry our personal PC’s to work and send/receive personal mails from personal PC’S. A statement on an email of an employee is not a company statement unless signed or sent by one of the directors or any person who has authority to do so.
This move is nothing but intimidation.
Oh no Prof, this is not the first time Minister Sisulu refuses to meet her problems head-on. I will not forget the time she refused to meet protesting residents of Joe Slovo. Later she drew anger when she said “if they choose not to cooperate with government, they will be removed from all housing waiting lists”.
Pierre, thank you for, in the spirit of Ubuntu, showing some respek for the Minister. Your respek-level would have been even more praiseworthy had you resisted calling her a “princess.” As for Dr Ngobeni, perhaps you will one day understand that he has been a victim of a RACIST conspiracy in Connecticut.
Hey Dworky – I am really impressed with your alma mater.
It was inspiring to learn about the chipmunk : “In time a cartoon chipmunk was inserted under “Chappies” on the wrapper. It was felt that rural black kids who possibly couldn’t read needed to distinguish the real Chappies from any substitutes on the market, and the chipmunk was distinctive. The wrapper still contains the chipmunk today”.
Chew on the Hendrik!
And how about this : ““We felt that black rural kids possibly didn’t have breakfast and if they chewed Chappies, they’d at least give them a little bit of energy”.
How about that, eh!
http://chappieswrappers.iblog.co.za/2007/08/02/chappies-bubble-gum-the-story-of-did-you-know/
While we’re on princesses, another one bites the dust.
“Duarte quits … for real”.
“Resigning from the Presidency was a difficult decision. However, I have discussed this with my political principals and I am leaving with their blessings.”
http://www.timeslive.co.za/local/article424162.ece/Duarte-quits-…-for-real
Leaving with their blessings = bugger off already???
What’s a princess to do? When your diary if full of international jaunts with your filandering boyfriend President (is it true she got so drunk in the US the hotel staff had to be called in because she was upset over Nomaindia and the fiancee also being…well…serviced) that you simply can’t squeeze in those irritating little SCOPA folk!
But Pierre, tell me, why no huge expose of the DA’s recent abuse of their majority on the Provincial SCOPA committee which silenced an inquiry into why the DA paid over R2m of public funds in a Golden Handshake to Swartz so that Zille could replace him with a DA cadre? Both she and the MEC confirmed that her office made the decision. Also wasn’t there a situation where Comrade Max had to point out to her that, contrary to her assertion, she DOES have to account for her decision making to the Provincial Parliament.
Surely this is just as important as the pampered Princess.
So? Is there to be a Note on the DA’s treatment of SCOPA? Thanks
“The arms deal inquiry is not yet dead, Themba Godi, chairman of parliament’s standing committee on public accounts said yesterday.”
http://www.timeslive.co.za/local/article433430.ece/Arms-deal-time-bomb-not-yet-defused–Godi
It seems like Themba Godi seeks an ambassadorship.
@Pierre
The Princess is now advocating (2 years) national service for the youth.
Pol Pot syle re-education camps, perhaps?
@Mpho
I full agree that the DA of all people should be subject to the same – if not higher – standards of scrutiny and probity that they require of the ANC.
I suspect that Zille has the answers that you are looking for – she has already made mincemeat of Lynn Brown and Rasool when they tried flinging the mud.
Tell us more about Nomaindia (Mfeketo?) and the Hotel goings on, please.